Obama Stands Behind 'State Secrets' in Spy Case

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Obama Stands Behind 'State Secrets' in Spy Case

SAN FRANCISCO – Hours after the Justice Department announced it would limit its use of the state secrets privilege in new cases, the administration appeared before a federal judge here Wednesday and continued to invoke that defense in a closely watched spy case.

The litigation at issue, now five years old, tests whether a sitting president may bypass Congress and adopt a warrantless surveillance program, as President Bush did in the wake of the 2001 terror attacks.

"We need to protect information concerning the manner and methods by which we seek to detect and prevent a terrorist attack," Justice Department special counsel Anthony Coppolino said Wednesday while arguing to a federal judge to dismiss the case on the basis of state secrets.

The 5-year-old case, having a tortured procedural history, is the furthest along in challenging the Bush administration’s warrantless Terror Surveillance Program.

Attorney General Eric Holder announced Wednesday that, under new guidelines for the Obama administration, the government would only invoke the privilege when there's a possibility of "significant harm" to the country, and won't use it to hide embarrassing or illegal government programs. Holder did not say whether the Bush administration cases it is now defending, including Wednesday's case, comport with the government's new philosophy.

The state-secrets defense was first recognized by the U.S. Supreme Court in a McCarthy-era lawsuit in 1953, and has been increasingly and successfully invoked by federal lawyers seeking to shield the government from court scrutiny. Generally, lawsuits in which national-security information may be divulged are usually tossed by judges at the request of the government.

The American Civil Liberties Union mocked the new guidelines.

"On paper, this is a step forward. In court however, the Obama administration continues to defend a broader view of state secrets put forward by the Bush administration and to demand that federal courts throw out lawsuits filed by victims of torture and illegal surveillance," Ben Wizner, staff attorney with the ACLU's National Security Project, said in a statement.

The lawsuit in question being argued here in federal court Wednesday claims that two American lawyers for a now-defunct Saudi charity were subjected to illegal, warrantless wiretaps.

Wendell Belew and Asim Gafoor allege some of their 2004 telephone conversations to Saudi Arabia were siphoned to the National Security Agency without warrants. The allegations were based on classified documents the government accidentally mailed to the two former lawyers of an Oregon chapter of the Al-Haramain Islamic Foundation.

"It's unlawful and unconstitutional," defense attorney Jon Eisenberg argued in open court Wednesday. "It couldn't get more clear than that. The question is this, may the president of the United States break the law in the name of national security?"

After a mountain of paperwork, a trip to the appellate courts and countless hearings and motions, U.S. District Judge Vaughn Walker of San Francisco ruled in June that the lawyers must make their case without the documents, which both the Bush and Obama administrations claimed were a state secret. On Wednesday, Judge Walker suggested Eisenberg might have enough evidence to prove his case, even without the document.

"He has presented a substantial array of public evidence that appears to indicate his client was subject to surveillance, electronic surveillance," Walker said from the bench here.

As is Judge Walkers' standard practice, he deferred ruling on whether the case could proceed. The decision could take months.

Judge Walker has said the document erroneously mailed to the lawyers could not be used in the case, but public evidence demonstrating unlawful spying could be taken into account.

Coppolino, the administration's attorney, said the public evidence "doesn't demonstrate that any of these defendants were surveilled. The evidence is fundamentally speculative and conjectural in our view."

The heart of the public evidence stems from a 2007 speech by FBI deputy director John Pistole, who told a convention of the American Banker's Association that the government initiated "surveillance" against al-Haramain, when listing it as a terror organization.

"Yes, we used other investigative tools — like records checks, surveillance and interviews of various subjects. But it was the financial evidence that provided justification for the initial designation and then the criminal charges," Pistole said.

All the while, Holder said in a statement Wednesday that new "state secrets" policy (.pdf) "sets out clear procedures that will provide greater accountability and ensure the state secrets privilege is invoked only when necessary and in the narrowest way possible."

The legal issue in the case argued here Wednesday centers on whether future presidents may adopt a so-called Terror Surveillance Program, which was President George W. Bush’s once-secret warrantless wiretapping program disclosed in 2005 by The New York Times. Bush said his war powers granted him the power to create the TSP program.

In July 2008, Bush signed legislation authorizing the type of surveillance at issue in this case – allowing the warrantless monitoring of Americans' electronic communications if they are communicating overseas with somebody the government believes is linked to terrorism. As an Illinois senator, Barack Obama voted for that legislation, which also immunized the nation’s telecommunication companies from lawsuits charging them with being complicit with the Bush administration’s warrantless, wiretapping program. Those lawsuits were dismissed, and are pending appeal.